TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – JANUARY 18, 2005

 

 

The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on January 18, 2005.  Chairman Kirk called the meeting to order at 7:30 p.m.

 

Those present:

 

Zoning Hearing Board:  Barbara Kirk, Chairman

                                                Rudolph Mayrhofer, Vice Chairman

                                                David Malinowski, Secretary

                                                Paul Bamburak, Member

                                                Darwin Dobson, Member

 

Others:                                     Nancy Frick, Director Zoning, Inspection & Planning

                                                Robert Habgood, Code Enforcement Officer

                                                Tim Duffy, Township Solicitor

                                                Drew Wagner, Township Engineer

                                                Allen Toadvine, Zoning Hearing Board Solicitor

                                                Steve Santarsiero, Supervisor Liaison

                                                Greg Caiola, Zoning Hearing Board Alternate (not

                                                  participating)

 

 

APPEAL #04-1254(A) – JOHN C. MCGINN, J.C. MCGINN CONSTRUCTION COMPANY

 

Ms. Kirk had marked as Board’s Exhibit 1 the letter dated January 18, 2005 directed to

Mr. Toadvine from Mr. John VanLuvanee, the Applicant’s attorney, requesting that the

Hearing be continued to the Hearing of February 15, 2005 and indicating that the

Applicant is granting an Extension to the Zoning Hearing Board through March 1, 2005

to hold the Hearing. 

 

There was no one present to discuss this matter this evening.  Ms. Kirk asked if any

members of the audience were present to listen to this Application, and two individuals

present this evening were advised that if the Board grants the request, this matter will be

continued to 2/15/05 and there will be no further notice published or advertised about the

Hearing.

 

Mr. Malinowski moved, Mr. Mayrhofer seconded and it was unanimously carried to

approve the request for continuance until 2/15/05.

 

 

January 18, 2005                                                         Zoning Hearing Board – page 2 of 22

 

 

APPEAL #04-1296 – SAM VIRGILLO

 

Mr. Sam Virgillo was present.  Ms. Kirk stated it was brought to her attention that the

property was not posted advertising tonight’s Hearing.  Mr. Habgood stated they did not

receive any proof of public posting.  He did not go out to the property to see if it had been

posted.  Ms. Kirk asked how they knew it was not posted, and Mr. Toadvine stated the

posting notices were returned to the Township.  Ms. Kirk stated she will provide to

Mr. Virgillo this evening the paperwork that the Township mailed which was sent by

Certified Mail and returned as undelivered after three attempts.  Mr. Virgillo stated he did

not receive any notice that any Certified Mail was sent to him.  Ms. Kirk stated he would

have to contact the Post Office about this.  Mr. Toadvine showed the posters which were

to be posted conspicuously at the property.  He stated it is mandated by the MPC that the

property be posted and the Application is advertised.  This must be done prior to the

Hearing.  Because the property was not posted, it was not properly advertised as far as the

law is concerned. 

 

Mr. Virgillo stated he did receive notice that letters were sent out to the adjacent property

owners.  Mr. Toadvine stated letters were sent to the neighbors, and it was advertised in

the newspaper; but because the property was not posted, they cannot conduct the

Hearing.  He stated he will have to post the property, and the matter will be heard at the

February 1, 2005 meeting.  Mr. Virgillo stated he would not be available on February 1. 

Ms. Kirk noted if they wait until February 15, there will be a problem because the

Application was filed on December 14 which would put them outside the sixty day

requirement.  Mr. Virgillo would have to agree to waive the time limits that requires the

Board to hold a Hearing within sixty days of the filing of the Application, and Mr.

Virgillo agreed to do so.

 

Mr. Bamburak noted the Posting indicates the meeting will be held on January 18, and

Mr. Toadvine changed these to read February 15. 

 

Mr. Malinowski moved and Mr. Bamburak seconded to continue the Hearing to February

15, 2005.

 

There was not one present to listen to this matter this evening.  The Motion to continue

carried unanimously.

 

 

APPEAL #04-1291 – DR. GERALD L. & JANET E. SNEAD

 

Mr. William Bolla, attorney, was present and stated he is representing Dr. Snead and his

wife who are requesting an accessory office pursuant to a Special Exception.  He stated

they feel they have met all the criteria necessary for the Special Exception.  He stated he

will also ask the Board to consider the buffer requirement under Section 200-73C6.  He

January 18, 2005                                                         Zoning Hearing Board – page 3 of 22

 

 

stated there is an existing non-conformity which they would ask be recognized with

regard to the buffer yard requirement; however, the buffer yard requirement can be met

and they would ask for reasonable consideration as to the length as it is a very long

narrow property, just slightly over three acres.  If there is a buffer requirement, they

would ask that it be limited to the area between the proposed parking and the adjoining

property.

 

Dr. Gerald Snead was sworn in.

 

Ms. Kirk asked that the Application that was submitted be marked as Exhibit A-1. 

Attached to that is a site plan prepared by Gibson Associates dated 10/19/04 consisting of

three sheets.  This was marked as Exhibit A-2.  As part of the Application, the Board

received a memo from the Planning Commission dated 1/11/05 indicating that this matter

was brought before the Planning Commission on 1/10/05 at which time, they

recommended approval of the Special Exception.  This memo was marked as Exhibit

B-2.

 

Dr. Snead stated he resides at 408 Big Oak Road and is a dentist.  He has been practicing

for twenty years.  Presently he practices in the Gaslight Village Shopping Center on

Makefield Road.  He would like to move the practice to his residence.  He purchased the

property in January, 2001 from Dr. William McKenna.  He noted the 790’ square foot

portion of the property which had been used by Dr. McKenna previously as a physician’s

office.  It is on the right hand side of the house.  The property does accommodate two

driveways – one for the residence and one for the office which includes parking as well.   

The second driveway is on the east property line.  This was used for the previous doctor’s

office.  Dr. Snead stated he will only use the same 790 square foot area that as previously

used by Dr. McKenna. 

 

There was discussion on Dr. Snead’s current normal hours of operation which are

Monday to Thursday from 11:00 a.m. to 8:00 p.m. and Tuesday and Wednesday from

8:00 a.m. to 5:00 p.m.  He occasionally has emergency services provided at other times. 

He will keep the same hours of operation at this proposed new location. 

 

Dr. Snead stated he has three full-time employees, one of whom is his wife and two part-

time employees.  He stated his wife is a dental hygienist and works in the office two days

a week.  He also has a full-time dental assistant who works all of the hours the practice is

open.  He also has a receptionist but she does not work the evening hours.  The other

part-time employee works as a receptionist in the evening.  Mr. Bolla stated it would

appear that he really has two full-time employees – himself and his chair-side as well as

his wife who works two days a week as a part-time employee and two employees sharing

one job as receptionist.  Dr. Snead agreed.

 

 

January 18, 2005                                                         Zoning Hearing Board – page 4 of 22

 

 

Exhibit A-2 (Site Plan) was noted which was prepared by the architect, Keith Gibson of

Gibson Associates.  The Zoning Conformance schedule set forth in A-2 was noted

including a calculation for the area of the existing structure and the office.  Dr. Snead was

asked and noted that he resides in the home with his wife and son.  Mr. Bolla asked if Dr.

Snead was aware that the architect calculated the square footage of the entire residence

consistent with the definition of floor area in the Zoning Ordinance, and Dr. Snead

agreed.  Mr. Bolla stated he did not include the basement in the calculations, and

Dr. Snead agreed.  Mr. Bolla stated under his reading of the Ordinance he feels he could

have included this, and Dr. Snead agreed.  Mr. Bolla asked if he measured the existing

area that had been used by Dr. McKenna, and Dr. Snead agreed.  The numbers shown on

Exhibit A-2 show that the total square footage of the property excluding the basement is

3,490 square feet and the area for the office is 790 square feet.    Dr. Snead stated the

garages were not included in the calculations. 

 

Mr. Bolla asked if Dr. Snead will make any changes to the exterior of the property that

would impact on the nature of the neighborhood, and Dr. Snead stated he will not.  He

stated he will place a sign consistent with the Zoning Ordinance. 

 

Dr. Snead stated he did receive notice of the meeting and he did post the property on the

east and west ends of the property on Big Oak Road.  They were posted on an existing

lamppost and a reflective marker.  They have been up since Tuesday of last week and are

still up.

 

Mr. Bolla asked if he plans any exterior display of any kind, and Dr. Snead stated he does

not.

 

Mr. Bolla asked if he is aware that the terms of the Zoning Ordinance, Big Oak Road is a

collector road, and Dr. Snead stated he is aware of this. 

 

Mr. Bolla stated Dr. Snead has agreed to provide, and the Plans show, a total of six off-

street parking spaces, two of which will be at the exterior of the garage although he could

also park inside the garage; and Dr. Snead agreed.  There are four parking spaces

dedicated to the office use, one of which is a handicap size parking space.   It was noted

that this is shown on A-2.

 

Dr. Snead stated he is not selling any other good or commodities on the property other

than the dentistry practice.

 

Mr. Bolla asked if the driveway located on the eastern boundary line was already in

existence when Dr. Snead purchased the home, and Dr. Snead stated it was.  The distance

between the driveway and edge of the property is 5’.  Between himself and his adjacent

residential neighbor there are currently trees, some of which are very mature.  Dr. Snead

estimated the approximate width of some of the trees and shrubs is currently 5’.

January 18, 2005                                                         Zoning Hearing Board – page 5 of 22

 

 

Mr. Bolla asked if there is sufficient space to provide 12’ of buffer if required, and

Dr. Snead stated there is.  He would propose to do this in the area defined by the northern

edge of the parking extended to the front edge of the building.    Ms. Kirk asked if he had

to provide this buffer, would he remove the existing trees and shrubs along the property

line between the office driveway and the adjacent residence, and Dr. Snead stated he

would not – he would supplement it.

 

There was no public comment.

 

Ms. Kirk moved and Mr. Malinowski seconded that the request for a Special Exception

for Tax Parcel #20-49-34 for a Class 4 Home Occupation pursuant to Section #200-

20B10 and Section #200-69A10 be granted with the condition that the normal hours of

operation be limited to Monday and Thursday from 11:00 a.m. to 8:00 p.m. and Tuesday

and Wednesday from 8:00 a.m. to 5:00 p.m. with no normal Friday hours.  Further that

the buffer requirement as set forth in Section 200-73C6 be waived due to the existing

non-conforming condition of the property.

 

Mr. Mayrhofer asked why should he be restricted to these hours.  Ms. Kirk stated there

was sworn testimony that these were the hours he would operate.  Mr. Mayrhofer asked if

this was satisfactory to Dr. Snead; and Dr. Snead stated this is what he has been working

at his other office for the last ten years, and he does not have any plans to change them. 

 

Motion carried unanimously.

 

 

APPEAL #04-1293 – KRISTINE/KEVIN WOJNOVICH

 

Ms. Kirk stated this matter was continued from January 4, 2005.  Mr. Kevin Wojnovich

was present and was reminded that he was previously sworn in and is still under oath.

Ms. Kirk stated following the last Hearing on this matter, Mr. Wojnovich submitted an

amended Application dated 1/7/05.   This was marked as Exhibit A-3.  She stated in that

amended Application Mr. Wojnovich indicated that he is withdrawing the request for a

Variance to exceed the height requirement of fifteen feet, and Mr. Wojnovich agreed. 

Ms. Kirk stated he has also modified the request for impervious surface.  She noted

currently they are at 19.5% impervious surface coverage without the she; and he is

requesting that if he is permitted to install the 160 square foot shed, he would agree to

still meet the 19.5% impervious surface that currently exists by removing impervious

surface somewhere else on the property.  Mr. Wojnovich stated they would take out

approximately 190 square feet from the front walkway so it would actually reduce the

impervious surface by .1 or .2.  Mr. Toadvine stated the impervious surface coverage

would then not be any greater than it is currently which is 19.5%.

 

 

January 18, 2005                                                         Zoning Hearing Board – page 6 of 22

 

 

Mr. Edward Kimble, 1804 Westover, was sworn in.    He stated he still objects to the

current revised Plan.  While it is a smaller building, it is not as small as stated at the

previous meeting which was 12’ by 12’.  Mr. Kimble stated this neighborhood is built on

two slopes, and the water flows down Westover northward and east to the Canal and

covers all the property that adjoins 101 Ovington Road.   There are also subterranean

streams.  He stated this property has already received one Zoning Variance at the time the

property was built, and they question how many Variances should be granted for one

property.  He stated the removal of the front walk and trading it for the impervious

surface that will occupy the proposed structure is not a viable alternative because he is

moving impervious surface from the front of the house to the back where it is closest to

the neighbors and further away from the house at 101 Ovington.  He does not feel this is

fair.  He stated the original proposal mentioned silt fences and these are still in the

proposal and they question whether this is a viable solution; and if they do not work what

would be their recourse.  He asked if the drainage trench is still in the new plan.  He

showed a photograph  showing the property which shows that this property is elevated by

a considerable degree to that of its neighbors.  Because of this, water run off from the

shed roof and into the trenches and silt fencing will have a higher hydrostatic pressure

than if the grounds were level to one another.  He questions whether this will cause

subterranean erosion and go onto adjoining properties.  He questions if an environmental

impact statement has been written or if the Township engineer has looked at this and

decided whether this will have an impact on neighborhood properties. He stated there was

discussion about landscaping to conceal the structure, and this is not noted on this Plan. 

Mr. Kimble stated they question why this shed cannot be moved closer to the house or

attached to it which would move the water problem away from the neighbors and closer

to the house itself.     Mr. Kimble asked why the shed could not incorporated into the

open porch already shown on the property.  This would minimize the impervious surface

even further.  He also asked if the railroad ties will remain in tact and they have not

received an answer on this.  He stated if these are removed, they are concerned it will

loosen the slope and cause further erosion.  He stated he feels there were put in when the

property was built for a reason.  Mr. Wojnovich stated he installed them.  Mr. Kimble

stated they feel the environmental integrity of the adjoining properties should not be

adversely impacted so that the neighbors who have resided there for ten to twenty years

will not have to suffer a hardship because of eroded property, water in their basement,

and reduction in property values. 

 

Mr. Barrett Levine, 102 Vernon Lane, was sworn in.  Mr. Levine stated he has resided

there for over thirty years and is downhill from 101 Ovington Road.  He has experienced

many water problems over the years .  Half of his water comes from 101 Ovington Road. 

As the intensity of the flow increases, he passes this onto his neighbors and this has

resulted in water problems for them.  He stated Mr. Coyne is aware of the numerous

times he has had to rebuild storm sewers in Westover because of the intensity of the

water flow.  He feels any change in the drainage area is out of line. 

 

January 18, 2005                                                         Zoning Hearing Board – page 7 of 22

 

 

Ms. Molly Mitchell, 104 Vernon Lane, was sworn in.  Ms. Mitchell stated her back yard

abuts this property slightly to the left.  She stated there are water and drainage issues in

the neighborhood.  She asked if there is any requirement for an engineer’s analysis of the

request of Mr. and Mrs. Wojnovich so that these issues of possible impact on neighboring

properties could be answered by a professional as opposed to speculation.  Mr. Toadvine

stated there is no requirement that the Township engineer to do this type of study for this

particular Application although it may occur in some other situations.  Ms. Mitchell

asked if the Township were to grant this request, what recourse would the neighbors have

if indeed there were impacts from this type of change.  Mr. Toadvine stated the Zoning

Hearing Board is dealing with a request which is in fact not technically a Variance

request at this point because the Applicant has withdrawn the request for the excess

height and has agreed that the impervious surface on the property will at least remain the

same and could possibly decrease.  As far as any implications of run off, they would not

be dealt with by this Board, but may be a private cause of action.  Ms. Mitchell asked if

there is any  way to determine whether even though the impervious space at this point

remains the same or is slightly less, there is any way to determine whether removal of

impervious surface for the front is a reasonable exchange for increasing impervious

surface in the back.  Mr. Toadvine stated the Zoning Hearing Board would not analyze

the quality of the impervious or the pervious surface.  It is a numeric calculation.

 

Ms. Kirk stated at the last Hearing, Mr. Wojnovich indicated he would provide a berm

and a drainage trench and silt fence as shown in A-2 and asked if he will still provide

this.  Mr. Wojnovich stated he will.  Mr. Wagner stated the silt fence is shown on the plan

as an erosion control.  The Plan does not show the location, size, etc. of the infiltration

trench and they could be required to size this to the satisfaction of the Township engineer. 

Mr. Wagner explained the way they install an infiltration trench.  Mr. Bamburak asked

who will determine if this is needed, and Mr. Wagner stated it could be put on as a

Stipulation.  Mr. Wojnovich stated these are shown on the Plan in case there is a problem.

Mr. Bamburak asked if they can stipulate that a professional engineer has to draw the

plans and seal them.  As this was a legal question, a short recess was taken at this time. 

 

The meeting was reconvened.

 

Ms. Kirk moved, Mr. Bamburak seconded and it was unanimously carried that in the

matter of Kristine and Kevin Wojnovich for the property located at 101 Ovington Road,

that the Application to construct a 160 square foot shed be granted with the understanding

that sufficient impervious surface coverage elsewhere on the property be removed so that

the current impervious surface will not increase based upon the construction of the shed

as set forth in the amended Application.

 

 

 

 

January 18, 2005                                                         Zoning Hearing Board – page 8 of 22

 

 

APPEAL #04-1282 – MIKE AND BARB GRAFELD, ETAL

 

Mr. Stephen Goldstein, representing the Applicants, and Mr. Michael Klimpl,

representing the property owners were present.  Ms. Kirk stated this Hearing was opened

at a previous meeting of the Zoning Hearing Board on November 3 and Exhibit A-1 was

marked which was the Application that was submitted.  Ms. Kirk asked how many people

Mr. Goldstein plans to have testify, and Mr. Goldstein stated he has two witnesses but

others may wish to speak as well.  Ms. Kirk stated his clients should understand that the

Board would not need to hear repetitious testimony or statements.  Mr. Goldstein stated

he has advised them of this.  Ms. Kirk asked how many witnesses Mr. Klimpl intends to

call, and he stated he will call Mr. Vogel, the property owner, and Ms. Nancy Frick. 

Ms. Kirk asked if the Township was party to this action, and Mr. Duffy stated they are

only present representing Ms. Frick who is a subpoenaed witness, and the Township does

not have a position on this Appeal. 

 

Mr. Goldstein stated this case involves the issuance of a Permit by the Township for

replacing a fence with a six foot high fence as indicated on the site plan at the property at

1597 Harvest Drive.  It is the contention of the named Appellants that this permit was

issued in error.  He stated it is an unusual situation because one would not expect an error

to be made regarding the issuance of a Permit, but they feel one was made in this case

and this is why they are seeking relief.

 

Ms. Kirk stated previously they discussed the issues that were before the Board including

the timeliness of the Appeal, the issue of having the Hearing within 60 days, and the

merits of the case.  Mr. Goldstein stated he would like to discuss the merits of the case

first and then discuss the other items. 

 

Ms. Kirk stated a copy of the Building Permit dated 6/10/04 was included as part of the

original paperwork submitted.  This makes reference to a site plan, but such a Plan was

not included in the packet.  Ms. Frick stated the only thing they received in the

Application was a copy of the permit.   Mr. Toadvine stated he felt it would be beneficial

for the record if they had the actual permit with the site plan that was submitted with the

permit application, and Ms. Frick stated she does have this.  Copies were made available

this evening and a copy was provided to the Zoning Hearing Board.  A-2 was marked

which is a photo copy of the Building Permit which is dated 6/20/04 and two site plans

that were attached to the Building Permit at the time that it was submitted, both site plans

have yellow highlighting, and Ms. Frick has highlighted the two plans in yellow, and it is

substantially the same as the highlighted provisions filed by Mr. Vogel.  This was marked

as A-2. 

 

 

 

 

January 18, 2005                                                         Zoning Hearing Board – page 9 of 22

 

 

Mr. Goldstein called Mr. Brendan Monaghan who was sworn in.  Mr. Goldstein offered a

site plan that is a copy of the site plan that is recorded in Bucks County showing the

Subdivision.  Mr. Monaghan stated he did obtain this from the County.   The site plan

was marked as A-3 and this was provided to Mr. Toadvine.  Mr. Goldstein stated this is

the Final Subdivision Plan.  Mr. Toadvine stated this is a Final Plan of Mirror Lake

Farms dated 3/1978, sheet 1 of 37 prepared by Tri State Engineers and Land Surveyors. 

Mr. Goldstein admitted a blow up of the particular corner of 1597 Harvest Drive and the

adjoining property.  This is a blow up of the site plan just submitted and was marked as

Exhibit A-4.

 

Mr. Klimpl asked is Mr. Monaghan’s signature is shown on Exhibit A-1, and

Mr. Monaghan stated it is.  Mr. Klimpl asked if Ruth Ann Boylan is his wife, and

Mr. Monaghan stated she is.

 

Ms. Ruth Anne Boylan-Monaghan was called and sworn in.  Ms. Boylan stated she is one

of the group that brought the Appeal.  Ms. Boylan noted a picture that was part of the real

estate packet when the house (1597 Harvest Drive) was on the market in the spring.  She

obtained this from the open house.  Mr. Goldstein asked that this be marked as Exhibit

A-5.  Mr. Goldberg showed Ms. Boylan three sets of pictures, one showing the front

taken from the corner of Harvest and Combine, one looking at 814 Combine Lane which

is the adjacent property, and one taken from inside 814 Combine Lane showing the fence. 

Ms. Boylan stated she took these photos on 8/2/04.  These were marked as Exhibits A-6,

A-7, and A-8.   Mr. Goldstein stated A-6 is the view of the corner, A-7, the view of 814

Combine Lane, and A-8 is taken from inside 814 Combine Lane.

 

Ms. Kirk stated each of the Zoning Hearing Board members has been by the property and

are aware of the fence and the condition that it is in currently.  Ms. Kirk asked if it is

correct that the property is a corner property with the front of the house facing on Harvest

Drive and a side on Combine Lane.  Mr. Goldstein agreed. 

 

Mr. Klimpl stated at some point they were aware this fence was going up and Ms. Boylan

stated she became aware of it the day it went up in the end of June.  Mr. Goldstein stated

Mr. Klimpl is probably addressing the timeliness issue and he would like to present his

case on the merits first and then address the timeliness.  Ms. Kirk stated as they have

presented the merits, Mr. Goldstein now go into the timeliness and offer any other

Exhibits and then Mr. Klimpl will be afforded the opportunity to cross examine.  Mr.

Klimpl agreed. 

 

Mr. Goldstein stated his last Exhibit is a series of four pages taken from the Zoning

Ordinance which he collectively called Exhibit A-9.  Mr. Toadvine suggested that the

Board’s attention be directed to this since the Zoning Ordinance is obviously in front of

everyone.  Mr. Goldstein stated he does have copies of the pages involved.  Mr. Toadvine

stated they do not need to be marked as an Exhibit.   Ms. Kirk asked the Sections

January 18, 2005                                                       Zoning Hearing Board – page 10 of 22

 

 

involved, and Mr. Goldstein stated they are 200-7 on Page 20015, Section 200-22 on

Page 20027, Section 200-61 on Page 20072.1, and Section 200-6914(c) on page 200111

dealing with fences and walls. 

 

Mr. Goldstein stated the first page of the Zoning Ordinance that was submitted and

marked as Page 20115 is from the Definition section of the Ordinance.  Mr. Klimpl asked

if this is closing or statement, and Ms. Kirk stated this is clarification of what was

submitted.  Mr. Goldstein stated there is a definition of what is a front yard.  The second

page submitted shows what the front yard is for this particular property which is a

subdivision with one acre lots.  The third page talks about corner lots and what rules

apply with respect to corner lots in terms of a lot which has frontage on two streets which

they submit is this particular lot in question which has frontage on Combine Lane and

Harvest.  Section 200-6914(c) talks about fences and front yards and essentially

concludes that the maximum height of a fence in the front yard can be three feet and by

definition from the prior page, this is a corner lot which has two front yards.  He feels in

this case this is the Ordinance and it seems that the Board can take notice of the

provisions of the Ordinance that this is a corner lot with two front yards and a permit was

issued for a fence of six feet which appears to be in clear contradiction of the provisions

of the Zoning Ordinance and this is what this case is about.

 

Mr. Toadvine asked if they can stipulate that the fence that is depicted in the Exhibits is

six feet in height, and this was agreeable to all present.  

 

Mr. Goldstein stated Mr. Klimpl raised the question about when Ms. Boylan first

discovered the fence was going up and he asked what happened during the period of time

following the discovery of the fence.  Ms. Boylan stated on June 24, 2004, the fence

started going up.  She stated they stopped by the Zoning Office the following day to look

at the Permit.  They had some questions and they were not satisfied with the answers. 

She went home and in the next few days she reviewed the Zoning Code and revisited the

Zoning Office in the middle of the following week either Wednesday or Thursday with

specific questions about the Zoning Code and the permit as it was issued.  She stated the

Zoning Officer she spoke to was not able to answer her questions specifically with regard

to the definition of the building setback line that was in the drawing, the language in the

Zoning Code that talked about the definition of a front yard, and when she presented the

page of the Code that she had printed off the Website, and asked the Zoning Officer to

answer questions about it, she stated she could not. 

 

Ms. Kirk asked if this was Sally Dorner, and Ms. Boylan stated it was Ms. Frick.

Ms. Kirk stated Ms. Frick is the Director of Building and Planning and Sally Dorner was

the Code Officer at that time, and Ms. Frick stated this is correct. 

 

Ms. Boylan stated she was confused why Ms. Frick could not answer her questions about

the Zoning Ordinance.  She asked her to clarify her position, and she was told she was the

January 18, 2005                                                       Zoning Hearing Board -  page 11 of 22

 

Director of Zoning.  She asked if there was anyone beyond her who might have more

knowledge of the Zoning Code, and Ms. Frick stated she was the Director of Zoning and

reported to Terry Fedorchak.  Ms. Boylan stated she questioned what the process in the

Township was for appealing a Permit, and Ms. Frick advised she did not know what it

was because she was not aware of any permits being appealed.  Ms. Boylan stated she

then left the office.  Ms. Boylan stated Ms. Frick did offer to speak to the Township

Solicitor to see what he would suggest and the Office did call Ms. Boylan later in the day

advising there was a packet of paperwork she could pick up.  She picked it up and called

the office several times with questions but was unable to connect with Ms. Frick to get

her questions answered. 

 

Ms. Boylan stated at that point she was not confident that the issue could be Appealed

and she dropped any intention of doing any follow up until her neighbors called her to see

what kind of result she had with the Township Office.  She stated she feels several other

people had questioned some things and did not seem to be satisfied with their responses

and a group of neighbors got together and decided to file the Appeal.  She stated what

they originally decided was to escalate the issue to Terry Fedorchak. 

 

Mr. Goldstein asked what papers they asked Ms. Boylan to pick up, and Ms. Boylan

stated it was the pack of paperwork that talked about appealing the permit.  Mr. Goldstein

asked at any time when she was in the Township Office and picked up the paperwork, did

anyone indicate that there was a deadline that had to be met in order to file the Appeal,

and Ms. Boylan stated she had no conversation with anyone in the Township office about

a deadline until they got to Terry Fedorchak and requested a meeting with him.  She

stated this meeting took place on August 2. 

 

Mr. Klimpl asked if Ms. Boylan signed the Appeal, and Ms. Boylan stated this is correct. 

Mr. Klimpl asked about her first visit to the Township, and Ms. Boylan stated the first

time she visited was Friday, June 25.  She did go home and review the Zoning Code

which she got on-line.  She stated she was able to print sections of it.  She reviewed

information specifically on side yards, front yards, and the section that talks about fence

height limitations.  When she came in the following week, she did obtain a copy of the

Building Permit that was issued.  This was on either June 30 or July 1.  Mr. Klimpl asked

if she reviewed any sections regarding Appeals, and Ms. Boylan stated she was told by

Ms. Frick that there was no Appeal process.  She stated when she was in the office on

June 30 or July 1 she asked what the process was the Township had in place to appeal or

challenge a Permit, and Ms. Frick advised that she had never had a permit appealed or

challenged and that she did not know what the process would be but that she would talk

to the Township Solicitor to find out.  Mr. Klimpl asked if she did advise her of the

process, and Ms. Boylan stated the secretary called her and Ms. Boylan did then pick up

the packet of paperwork which included the Appeal forms.  Mr. Klimpl stated it appears

the Appeal form was not filed until August 11.  Ms. Boylan stated when the Secretary

called, she did not exactly explain what the paperwork was.  Mr. Klimpl stated the

question is did she sign the Appeal on August 11, 2004, and Ms. Boylan stated she did. 

January 18, 2005                                                       Zoning Hearing Board – page 12 of 22

 

 

Mr. Klimpl asked that the receipt that was provided to him from Ms. Frick be marked as

Exhibit V-1.  Mr. Toadvine stated this is a one-page document entitled Lower Makefield

Township Record Information Request form and there appears to be a date stamp of

July 1 of 2004.  This was agreed to by all present.  Mr. Klimpl noted the request for the

permit, and Ms. Boylan stated she did request this. 

 

Mr. Boylan asked about the meeting with the Township Manger, and Ms. Boylan stated

the first time they met with him was August 2.  Mr. Klimpl asked about their

conversation with Mr. Fedorchak, and Ms. Boylan stated they met with him as a group of

neighbors to talk about the processing of the permits and the review of the permit. 

Mr. Klimpl asked the results of the meeting.  Ms. Boylan stated he suggested that they

submit a letter to the Township indicating the community group intended to appeal and

suggested a follow-up meeting with him.  Mr. Klimpl asked if she had shown any of the

neighbors the Zoning Ordinance sections or advised them out to get them on-line, and

Ms. Boylan stated does not feel she did.

 

Mr. Goldstein stated Ms. Boylan indicated the Secretary called her, and he asked if

Ms. Boylan spoke to her or if she left a message.  Ms. Boylan stated she left a message

when she called about the paperwork.  The Secretary said that Ms. Frick had followed up

with the Township Solicitor and there was paperwork there that she should pick up. 

 

Mr. Klimpl asked if this paperwork included information on Appeals, and Ms. Boylan

stated it did.

 

Mr. Toadvine asked the date she picked up the Appeal forms, and Ms. Boylan stated it

was July 1 – the same time she picked up the copy of the Permit.  She had seen the permit

previously on June 25.  Mr. Toadvine stated the Application was signed on August 11,

and Ms. Boylan stated this is correct.  Mr. Toadvine asked if it was filed on that date.

Ms. Boylan stated she believes it was notarized on August 11 and filed on August 12

with the Township.   Mr. Toadvine stated that on Exhibit A-1 there is a date stamp of

September 8, 2004, and asked if all would agree that this is correct.  Mr. Goldstein stated

he does not have a copy of this.  A copy of the original was shown to Mr. Goldstein. 

Mr. Goldstein stated he will agree that the Township placed the date stamp on the

Application that says September 8.  Mr. Toadvine asked if the document was filed on

August 12, does she know why it would be date stamped September 8.  Ms. Boylan

stated when they had the conversations with Mr. Fedorchak, he suggested that they get

the paperwork filed.  Because it was a neighborhood appeal and they were concerned

about having to collect money from the neighborhood to submit the $500 with the

Appeal, he suggested getting the paperwork notarized and on file with the Township as

quickly as they could with or without the money.  Mr. Toadvine stated she is now

indicating that when they filed it in August, they did not pay the Application fee, and

Ms. Boylan stated this is correct.  Mr. Toadvine asked if the Application fee was brought

in at a later date.  Ms. Boylan stated the Township called on August 30 and asked that

January 18, 2005                                                       Zoning Hearing Board – page 13 of 22

 

 

they submit the fee.  Mr. Toadvine asked if would be fair to assume that the fee was

submitted on September 8 and this is why it is date stamped on that date.  Ms. Boylan

stated the fee was dropped off on September 3 and she has a receipt to that effect. 

Ms. Kirk asked what day September 3 was, and Ms. Boylan stated it was the Friday

before Labor Day.  Ms. Frick stated Monday was a Holiday.  Ms. Kirk asked if

September 8 is the Tuesday after Labor Day, and Ms. Frick stated it was Wednesday after

Labor Day.  Mr. Goldstein asked what time the fee was dropped off, and Ms. Boylan

stated her husband dropped it off. 

 

Mr. Duffy stated Ms. Boylan indicated that when she met with Ms. Frick there were

questions which were not answered to her satisfaction and he asked what the questions

were.  Ms. Boylan stated she was concerned that the fence was built along the front of the

property line of 814 Combine Lane property and she specifically asked Ms. Frick about

the Code that talked about the definition of front yard and the building setback line. 

Ms. Boylan stated she pointed to the building setback line in the drawing of the Township

development Plan and asked if this building setback line defines the front yard for the

property and Ms. Frick indicated yes.  Ms. Boylan asked how the building setback line

when it runs through both properties is interpreted by the Code, and Ms. Frick asked

“What Code.”  Mr. Boylan noted the “Zoning Code,” and Ms. Frick stated “How would I

know, I didn’t write that.”  Ms. Boylan state this conversation was on July 1.  Mr. Duffy

asked about the conversation on June 25, and Ms. Boylan stated they were not satisfied

with the answers she gave at that meeting specifically concerning the front yard that the

fence bordered. 

 

Mr. Duffy stated at one point Ms. Boylan stated Ms. Frick told her there was no appeal

process but previously Ms. Boylan indicated that she stated she did not know that there

had ever been one.  Ms. Boylan stated Ms. Frick told her that there had never been a

permit appealed that she knew of, and she was not familiar with what the process was.

Mr. Duffy stated Ms. Frick did not tell Ms. Boylan that there was not a process, and

Ms. Boylan stated Ms. Frick told her she did not know what it was.  Ms. Boylan stated

maybe she assumed that there was none if the Zoning Officer did not know what it was. 

Mr. Duffy stated Ms. Boylan gave testimony that Ms. Frick told her that there was not a

process and asked if this testimony  is now incorrect.  Mr. Duffy asked if Ms. Frick told

her that there was no appeal process, and Ms. Boylan stated she honestly did not

remember what her exact words were but she was left with the impression that there was

no process.  Mr. Duffy asked if Ms. Frick told her not to Appeal, and Ms. Boylan stated

she did not.  Mr. Duffy asked if Ms. Frick told her not to get an attorney, and Ms. Boylan

stated she did not.  Mr. Duffy asked if Ms. Frick or someone in her office give

Ms. Boylan the forms that say “Notice of Appeal”, and Ms. Boylan stated she did.

 

 

 

 

January 18, 2005                                                        Zoning Hearing Board – page14 of 22

 

 

Mr. Brendan Monaghan was recalled.  Mr. Monaghan was asked about the $500 fee for

the Zoning Appeal, and Mr. Monaghan stated he did drop this off at the Township on

Friday, September 3 right before Noon.  He stated he dropped off the money to

Ms. Frick.  The copy of the receipt was shown, and Mr. Monaghan stated this is the

receipt he has. 

 

Mr. Goldstein stated he has no further witnesses.

 

Mr. Klimpl called Ms. Frick who was subpoenaed and was sworn in.  Ms. Klimpl asked

if Ms. Frick recalled Ms. Boylan coming into the Township in late June/early July, and

Ms. Frick stated she does and there is a memo to this effect in her file.  Mr. Klimpl asked

her to summarize the visit she had with Ms. Boylan.  Ms. Frick stated there were

numerous visits.  She can read her notes from the file because there were so many

residents who came into the office or called many times regarding this matter.  Ms. Frick

noted the memo to file dated 7/1/04:  Nancy Frick has received several calls regarding the

permit issued for a fence at the property at 1597 Harvest Drive.  Nancy Frick has spent

much time on the phone and at the counter regarding discussions of the Zoning Code

with regard to two front yards, placement of the fence, etc.  Ms. Marianne Smith called

on 6/29 and 6/30 and also made contact again on 7/1 and Ms. Frick spent approximately

fifteen minutes on the phone. In the interim another resident, Ms. Boylan, came in and

asked to see the file and meet with Ms. Frick.   Ms. Frick was involved with the phone

conversation and had an individual waiting to meet with her and Ms. Joan Schlicker was

asked to have Ms. Boylan wait for approximately fifteen to twenty minutes.  Nancy

finished her appointment in approximately twelve minutes and came to the counter to

discuss the issue with Ms. Boylan.  Ms. Frick explained about the front yard and the

Township’s interpretation.  Ms. Boylan wanted to know how to challenge the issuance of

the permit, and Ms. Frick stated she would have to contact the Township Solicitor as she

was not aware of that ever occurring in her time with the Township.  Ms. Boylan stated

she found it was incredible that no one had ever challenged a permit and left somewhat

disgruntled with the Township.  In the interim Mrs. Smith called back and questioned the

fence location.  Ms. Frick called her back and discussed it further with her.  Mrs. Smith

stated that she believed that there were deed restrictions of some kind and she was

advised she would need to contact Doylestown.  Ms. Frick asked Ms. Schlicker to call

Ms. Boylan and advise her that according to the Township Solicitor anyone who wants to

challenge a permit with respect to Zoning would have to file an Appeal to the Zoning

Hearing Board and that there forms were available.  Ms. Boylan advised that she felt the

forms were on-line but requested that they put them aside and she would pick them up

and pay for the copies.

 

Ms. Kirk asked the identification of Ms. Schlicker, and Ms. Frick stated she is her

secretary.

 

 

January 18, 2005                                                       Zoning Hearing Board – page 15 of 22

 

 

Mr. Klimpl asked about the last paragraph indicating that she asked Joan to call and have

Ms. Boylan pick up the forms, and asked what date was this done, and Ms. Frick stated it

was the exact date that Ms. Boylan came in – July 1.  She stated this all occurred from

11:00 a.m. to 4:30 p.m. on July 1, 2004.  Ms. Boylan did in fact pick up the forms.

 

Mr. Klimpl noted Exhibit A-2, the Application with the yellow highlighted sketches of

this fence.  He stated this was part of the Permit Application, and Ms. Frick agreed. 

Mr. Klimpl stated this permitted a six foot fence to be constructed as highlighted in

yellow.  Mr. Goldstein objected.  Ms. Kirk asked that he re-phrase.  Mr. Klimpl asked

what the yellow indicates on the two sketches that are part of the permit, and Ms. Frick

stated it is the proposed location of the fence.  The permit was for a six foot fence. 

Mr. Klimpl asked if the fence was constructed in accordance with the permit, and

Ms. Frick stated it was to the best of her knowledge.  It did permit the six fence to be in

the setback area between Combine and the Vogel residence.  Ms. Frick stated it was

approved by Sally Ann Bellaspica on 6/2/04. 

 

Mr. Klimpl asked about Ms. Frick’s interpretation of the lot as far as one front yard and

one side yard.  Mr. Duffy objected.  Mr. Klimpl asked her interpretation of the property

as far as side yards and front yards.  Ms. Frick stated the front yard is determined by how

the house is set.  Mr. Klimpl asked how the house at issue is set.  Ms. Frick stated it

fronts on Harvest Drive so the side would be Combine Lane.  Mr. Klimpl asked if there

are similar lot configurations in the Township, and Ms. Frick stated there are. Mr. Klimpl

asked if  Ms. Frick has had occasion to interpret the Ordinance and determine the

issuance of various permits on those type of lots.  Mr. Klimpl asked where there is a

home such as this configuration where the front door faces a street and the side of the

house faces a street, has it been her interpretation that the configuration presents one front

yard and one side yard, and Ms. Frick agreed.   Ms. Frick stated she has issued permits to

this effect including fences for permits.  Ms. Klimpl asked if she can recall the most

recent one issued, and Ms. Frick stated the last one was within the last two months. 

Mr. Klimpl asked if there is any way she can estimate how many such permits have been

issued.  Ms. Frick stated she signs every Building Permit that the Township issues

although she does not personally review them all for Zoning. She stated she has reviewed

many which were similar to this, but she could not state exactly how many. 

 

Mr. Kirk asked Ms. Frick how long she has been the Manager of the Zoning and Building

and Planning Department of the Township, and Ms. Frick stated she has been so since

1984.  She has during this time reviewed and signed building permits issued by the

Township. 

 

Mr. Klimpl asked if she has a copy of the receipt for the $500, and Ms. Frick stated this is

in a different receipt book than the one for the Building Permits. 

 

 

January 18, 2005                                                       Zoning Hearing Board – page 16 of 22

 

 

Mr. Goldstein asked how long Ms. Frick has been an employee of the Township, and

Ms. Frick stated she has been employed by the Township since December of 1980.

She has been the Director of Zoning, Inspection & Planning since 1984.  Prior to that she

was the Assistant and Code Enforcement Officer.  She did not become the Zoning Officer

until 1992.  She has been Director since 1984.  She is still the Zoning Officer.

Mr. Goldstein asked if she is familiar with the Zoning Ordinance, and Ms. Frick stated

she is.  Mr. Goldstein asked if she knows what a front yard is, and Ms. Frick stated she

does.  Mr. Goldstein noted Section 200-61 of the Zoning Ordinance Paragraph A for

corner lots and the portion he has underlined which states a lot with frontage on two or

more streets including corner lots would have a building setback from each street not less

than the required front yard and asked what this means to her.  Ms. Frick stated her

interpretation is a building setback line is for a building not for a shed, a fence, pool etc. 

Mr. Goldstein stated a corner lot essentially for building setback purposes has two front

yards, and Ms. Frick stated she does not feel they have two front yards but the setback

would be not less than the required front yard. 

 

Mr. Goldstein noted the next page regarding fences – Section 200-69A14(c) which is for

residential accessory buildings, fences and structures and sub-paragraph C notes fences

and walls.  Mr. Goldstein stated it indicates fences and walls may be erected in the front,

rear, or side yard or the special setback subject to conditions.  He stated it indicates the

maximum permitted height of any fence in a rear or side yard or in the special setback

would be seven feet but if you look at the underscored language which he underlined, it

states the maximum permitted height of any fence in a front yard shall be three feet where

a front yard overlaps either a rear or side yard or special setback, the height restrictions

for the front yard shall control.  He stated with regard to the previous page she indicated

that when there is a corner lot, for the purposes of this determination, each of the sides

facing the street is deemed to be a front yard.  Ms. Frick stated Mr. Goldstein indicated

this – she did not.  Mr. Goldstein stated he feels the Ordinance says this. 

 

Mr. Klimpl objected and Mr. Duffy objected.   Mr. Klimpl stated he feels Mr. Goldstein

is becoming argumentative and they are now getting into legal arguments on the language

of the Statute.  Ms. Kirk stated this objection is sustained.  Mr. Duffy stated he objected

because the Ordinance speaks for itself and Mr. Goldstein was mischaracterizing prior

testimony.  Ms. Kirk stated this objection is sustained.

 

Mr. Goldstein asked if Ms. Frick would agree that the Ordinance provides that the

maximum height of any fence located in a front yard is three feet, and Ms. Frick stated

she would. 

 

Mr. Goldstein stated he imagines in  her twenty-four years with the Township once or

twice Permits and Applications have been denied and people are advised that it is their

right to make an Appeal, and Ms. Frick agreed.  Mr. Goldstein asked if she is aware that

people have thirty days to take an Appeal, and Ms. Frick agreed.  Mr. Goldstein stated

January 18, 2005                                                       Zoning Hearing Board – page 17 of 22

 

 

that when it came to the matter of appealing the issuance of the permit by the neighbors,

she did not state that they had thirty days to Appeal.  Ms. Frick stated Ms. Boylan did not

ask this question.  Ms. Frick stated she asked Ms. Boylan if she wanted to Appeal and

Ms. Boylan stated she did not want to Appeal and go to the Zoning Hearing Board.   

Ms. Boylan stated she wanted to know how to challenge Ms. Frick’s decision.  Ms. Frick

stated she advised her she had never had a permit challenged that she had issued. 

Ms. Boylan stated she found this hard to believe.  She told her she had never had this

happen and she would ask the Solicitor and call her back with his answer.  Mr. Goldstein

stated no question was raised by her nor asked of Ms. Frick by anyone on the timing, and

Ms. Frick stated they had to determine what she was going for first. 

 

Mr. Robert Vogel was called and sworn in.  Mr. Vogel stated he is the owner of the

property in question.  He has seen Exhibit A-2 which is the Building Permit and the

yellow highlighted portion.  Mr. Vogel stated this is the manner in which his fence was

constructed.  It is six feet high.  It sits approximately ten feet from Combine Lane. 

It is approximately seventy-five feet from Harvest Drive. 

 

Mr. Klimpl marked as Exhibit V-2 the memo that Ms. Frick read into the record this

evening.  Mr. Goldstein had no objection.  This was noted as a memo to the file from

Nancy Frick dated July 1, 2004. 

 

Mr. Klimpl showed photographs which were marked as Exhibit V-3 and V-4 which show

the rear yard and the fence.  Mr. Goldstein had no objection.  Mr. Toadvine stated these

are two photographs of the rear yard of Mr. Vogel’s property.

 

Mr. Klimpl stated a permit for the fence was issued in June, 2004 and he asked when they

started construction.  Mr. Vogel stated it started the third week in June.   Mr. Klimpl

asked if various neighbors came over and take  note of it, and Mr. Vogel stated they did. 

He stated they moved into the house on June 19, and the fence was constructed after that

time.  He stated there is also an internal fence and they put a safety fence between the

house and the swimming pool and this was not completed until the later part of June/early

July.

 

Exhibit V-5 was marked which is the Home Depot receipt from July 3 for additional

hinges and bolts for locking  the gates.  Mr. Vogel stated the fence was complete at that

time.  There was no objection to Exhibit V-5.

 

Mr. Klimpl asked if they had an opportunity to observe other fences in the neighborhood,

and Mr. Vogel stated he has in the Township.  Mr. Goldstein objected.  Mr. Klimpl asked

if he has had an opportunity to observe other fences in the Township, and Mr. Vogel

stated he has.

 

 

January 18, 2005                                                       Zoning Hearing Board – page 18 of 22

 

Mr. Vogel noted photographs which were marked as Exhibit V-6 and V-7 and Mr. Vogel

stated these are pictures of other corner lots that have a fence similar to their lay out. 

Mr. Vogel stated one is at Colt and Jockey Lane in Lower Makefield Township.  The

fence is approximately six feet in height.  He did not go onto the property to measure it. 

Mr. Goldstein had no objection.  These are two photographs of the same lot.

 

Mr. Klimpl showed additional photographs which were marked as Exhibit V-8 and V-9. 

Exhibit V-8 shows a property at Dolington and Quarry Commons and Exhibit V-9 is a

fence on a property on the opposite corner of Dolington Road and Quarry Commons. 

Mr. Vogel stated he took these photographs.  There was no objection. 

 

Mr. Klimpl asked if the fence is fully up at this point, and Mr. Vogel stated it is and he

abided by all the terms and conditions imposed on the permit.

 

Mr. Goldstein asked when the fence started to go up, Mr. Vogel indicated he had

conversations with his neighbors, and asked what took place during those conversations. 

Mr. Klimpl objected due to relevancy.  Ms. Kirk overruled.  Mr. Vogel stated

Mr. Lindner from Combine Lane came over after he had returned from a business trip

during the time the fence was being construed.  He asked what they were doing. 

Mr. Vogel explained that they were putting the fence up because they had three small

children and were putting in a play set.  Mr. Lindner walked him to a different property to

show him a fence that he would be more in favor of that was on the corner of Combine

and Silo and asked if he would cut their side yard in half and even offered to pay for the

cost to so, and Mr. Vogel stated he had no interest in cutting his side yard in half.    He

stated the conversation ended on a good note.  He is the next-door neighbor.  They also

had several conversations with the Monahan/Bolands.  The first was when Ruth Ann and

Maryanne Lindner came over when the fence was started and voiced their concern and

indicated they were going to go to the Township.  He advised that he had obtained a

permit and felt that what they were doing what was in the best interest of their children

and they were following the rules as they were laid out. 

 

Mr. Goldstein asked the cost of the fence, and Mr. Vogel stated it cost $12,000 for the

entire project.  Mr. Goldstein asked if he ever estimated when the Appeal was field the

possibility that there might be a problem with the fence and the cost of reducing the fence

in size to the extent of the seventy-five feet in question.  Mr. Klimpl objected.  Ms. Kirk

overruled.  Mr. Vogel answered he has not. 

 

Mr. Goldstein noted the pictures he took of fences in other areas.  He asked if to his

knowledge there are any other fences in the Mirror Lake Farms Development that are like

his where a corner lot goes all the way to the street, and Mr. Vogel stated the fence that

Mr. Lindner took him to look at is in the seventy-five foot area.  It is a fence over four

feet in size.  Mr. Goldstein asked why he did not take a picture of this fence.  Mr. Klimpl

objected.  Mr. Goldstein withdrew the question. Mr. Goldstein asked if this is the only

fence in the neighborhood he is aware of on a corner lot, and Mr. Vogel agreed.

January 18, 2005                                                       Zoning Hearing Board – page 19 of 22

 

 

Mr. Klimpl asked if Mr. Vogel displayed the permit in his window at the time the fence

was being constructed, and Mr. Vogel stated he did and it was in the front of the house.

 

Mr. Mayrhofer stated in looking at Section 200-61A for corner lots, it states a lot with

frontage on two or more streets including corner lots will have a building setback on each

street of not less than that for the front yard.  He noted the Plan that was provided (A-2)

and if he draws a line from the back edge of the property and bisects where the

intersection of Harvest Drive and Combine Lane would be, as far as he can see they have

greater frontage on Combine Lane and also it seems more of the house is on Combine

Lane than there is on Harvest.  He stated he personally has a concern as to what is the

front yard on this property. 

 

Mr. Bamburak noted Exhibit A-2 and stated it was photocopied in black and white and

this yellow line was drawn on.  Ms. Frick stated she copied it from the original so that the

Zoning Hearing Board could see where it was located.  Mr. Bamburak noted in the rear

the xxx line and asked if this is where the fence was that was replaced, and Mr. Vogel

stated this was the prior fence.

 

Mr. Mayrhofer asked if there would have been a permit issued for the prior fence, and

Ms. Frick stated she assumes there was at the time the original building permit was

issued. 

 

Ms. Kirk asked for further comments from the audience.

 

Dr. Mel Burchman, 1591 Silo Road stated some pictures were shown properties at  

Jockey and Dolington and he asked if they were on properties inside the development or

on main roads.  Mr. Vogel sated the one on Jockey was inside a development. 

Dr. Burchman asked if they were issued through a permit or a Variance, and Mr. Vogel

stated he did not know.  Dr. Burchman stated if it was approved by a Variance it would

have had the support of the neighbors.  Ms. Kirk stated if it was done by Variance, a

Variance is only granted by the Zoning Hearing Board and it has nothing to do with

approval of neighbors or opposition by the Township.  She stated the Zoning Hearing

Board hears testimony for each case requesting a Variance.  Dr. Burchman stated the

neighbors would have been notified and Ms. Kirk stated this is correct.  She stated his

question was that it would be granted based on neighbors support and this is not how it

happens. 

 

Ms. Kirk moved, Mr. Dobson seconded and it was unanimously carried to close the

testimony on this matter.

 

Ms. Kirk stated that rather than hearing closing arguments tonight, she would move that

the Attorneys for the Applicant and property owners submit written Findings of Fact and

Conclusions of Law to the Board within twenty days addressing each of the issues raised

January 18, 2005                                                       Zoning Hearing Board – page 20 of 22

 

 

at the first Hearing in November, those issues being timeliness of the filing of this

Appeal, the issue as to whether or not the Zoning Hearing Board initiated a Hearing

within the sixty days since the filing of the Appeal, and the merits of the case. 

 

Mr. Toadvine stated he feels that if they are going to request Findings of Facts and briefs

on this matter that they be submitted in time so that the Zoning Hearing Board can make

a determination before the second meeting in February.  Ms. Kirk stated she asked for

briefs to be submitted in twenty days and does not want them submitted the day before

the second  meeting in February.  She feels twenty days would give them time to submit

them so that they could be provided to the Zoning Hearing Board in their packet for the

meeting of February 15. 

 

Mr. Dobson seconded the Motion and the Motion carried unanimously.

 

Mr. Toadvine stated it is important that the issue of timeliness be addressed because the

burden of proof is on the Applicant that the Appeal was timely filed and this will be a

critical consideration to the Board before they can get to other issues. 

Mr. Goldstein stated he disagrees with this.  He feels the Zoning Hearing Board should

make a decision on all three of the issues.  He stated here is no procedure that he is aware

of for preliminary objections on Findings of Facts.  He stated they are charged with the

responsibility to interpret the Zoning Ordinance.  He supposes that on the technical

determination they could,  if the chose to do so, “duck the issue” of determining whether

the Ordinances were properly interpreted; but he feels it is before the Zoning Hearing

Board and has a lot of importance if not just for this case but perhaps for others.

 

Ms. Kirk noted Section 200-96 of the Zoning Ordinance dealing with interpretation of

Appeals which sets forth that the duties that a person aggrieved by the decision of the

Zoning Officer has the right to Appeal to this Board.  She stated she believes it is a

critical issue that this Board first determine whether or not this Appeal was timely filed. 

 

Mr. Klimpl stated at the December 7 hearing, which was continued, it was continued at

Mr. Goldstein’s request.  Mr. Goldstein stated this is not the issue.    Ms. Kirk stated they

opened testimony at the initial Hearing on November 3.  Mr. Toadvine stated at that time

Mr. Goldstein raised the issue of whether or not the Zoning Hearing Board had failed to

hold a Hearing within sixty days of the filing of the Application.  Mr. Klimpl stated he

agrees but wanted the record to reflect that the continuance was at Mr. Goldstein’s

request.  Ms. Kirk stated this has nothing to do with the continuance as they opened

testimony on November 3.  The request for continuance was previously made part of the

record as Exhibit B-1. 

 

 

 

 

January 18, 2005                                                       Zoning Hearing Board – page 21 of 22

 

 

Mr. Goldstein stated he understands that there will be no closing because there is no need

for a closing since the attorneys will submit Findings of Facts and Conclusions of Law to

deal with the legal arguments on all three issues. He stated he understands that the Zoning

Hearing Board will reserve the right and may very well determine if as a threshold issue

they determine that the Appeal was not timely filed, then he assumes that they will not go

to the next question.  Ms. Kirk stated the Board reserves the right that if they determine

the Appeal was not timely filed, there is no need to go to the next issue. 

 

Ms. Jean Kuhn, 807 Combine Lane, stated she was one of the Applicants and she asked

about the timing.  She stated she is not sure of the procedure.  Ms. Kirk asked that she

raise this question to her attorney. 

 

 

OTHER BUSINESS

 

Appeal #04-1238 – Realen Homes, L.P. – Request for Extension

 

Ms. Kirk stated a letter was submitted to Allen Toadvine dated 1/12/05 from Edward

Murphy, attorney for Realen Homes L.P. regarding the Zoning Hearing Board decision of

January 20, 2004.  Realen Homes has been acquired by Orleans Homebuilders and has

not been able to commence construction within the timeframe as set for in the Board’s

decision due to the outstanding issues with Bucks County Water and Sewer.  She stated

the Board decided to grant the Appeal of Realen Homes L.P. for a Variance from various

sections of the Zoning Code dealing with buildings within the special resource protection

area.  Mr. Wagner stated this is the Chanticleer Development. 

 

Ms. Kirk stated Mr. Murphy is requesting that the Board consider extending the

Variances that were previously granted on 1/20/04 for a twelve month period of time due

to the outstanding issues regarding sewer planning with Bucks County Water and Sewer

Authority as well as the Pennsylvania Department of Environmental Protection. 

Ms. Kirk stated she knows from experience dealing with such matters that there is a

moratorium in place as to hook ups for sewers and that moratorium does not appear to be

getting resolved in the near future.  She stated this relates to the Neshaminy Interceptor

with Philadelphia which is in litigation.  She does not therefore feel this request is

unreasonable.

 

Mr. Bamburak moved and Mr. Mayrhofer seconded to grant a twelve month extension. 

Motion carried with Mr. Malinowski opposed.

 

 

 

 

 

January 18, 2005                                                       Zoning Hearing Board -  page 22 of 22

 

 

Appeal #04-1240 – Centennial Commons, LLP Request for Extension

 

Ms. Kirk noted the letter dated January 17, 2005 to Mr. Toadvine from Mr. Murphy

dealing with the Appeal of Centennial Commons LLP.  Zoning relief was granted on

April 6, 2004.  The Building Permit Application has been submitted but because the

Building Permit Application was submitted more than six months from the Board’s

decision, the Permit cannot be issued without an extension of time.  Mr. Murphy is

requesting that the Variances previously granted be extended until March 15, 2005.

 

Ms. Kirk asked why it took them so long to submit a Permit Application, and

Mr. Toadvine stated he does not know.  Ms. Kirk stated the Variance dealt with minimum

net lot area, minimum lot width, minimum rear yard setbacks, impervious surface ratio,

floodplain, and resource protection.  Mr. Wagner stated this property is on River Road

between Manor Lane and Manor Gate.  This was granted in April of 2004.  Mr. Wagner

stated there were a number of revisions dealing with sewers.  Ms. Kirk stated it may have

had to be revised after the DEP did their review as to the Sewer Planning Modules.

 

Mr. Toadvine stated many Townships do allow a year shelf life on their Variances and

Special Exceptions. 

 

Mr. Dobson moved, Mr. Mayrhofer seconded and it was unanimously carried to grant an

extension until March 15, 2005.

 

 

There being no further business, Ms. Kirk moved, Mr. Mayrhofer seconded and it was unanimously carried to adjourn the meeting at 10:25 p.m.

 

                                                                        Respectfully Submitted,

 

 

 

 

                                                                        David Malinowski, Secretary